COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71129 : AMANDA MILES : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : EDWARD MILES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 11, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-243977 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: WILLIAM H. SMITH, ESQ. JOYCE E. BARRETT, ESQ. 950 Rockefeller Building 800 Standard Building 614 Superior Avenue, N.W. 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Edward Miles, defendant-appellant, appeals the marital property division reached by the trial court in an uncontested divorce action filed by Amanda Miles, plaintiff-appellee. Edward Miles assigns the following four errors for our review: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO CONSIDER THE RETIREMENT BENEFITS OF THE PARTIES AS MANDATED BY OHIO REVISED CODE SECTION 3105.171. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS FAILURE TO DELINEATE MARITAL PROPERTY AND SEPARATE PROPERTY AS MANDATED BY OHIO REVISED CODE SECTION 3105.171. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS FAILURE TO AWARD APPELLANT HIS SEPARATE PROPERTY. IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO FILE AN ANSWER INSTANTER. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Amanda Miles filed for a divorce and Edward Miles was duly served. He failed to answer her complaint but did personally appear at the divorce hearing. He was allowed to participate in the hearing as well as afforded an opportunity to cross examine Amanda Miles. During his cross-examination, he failed to elicit testimony from Amanda Miles regarding her retirement benefits. Although Amanda Miles filed a pretrial statement and affidavit stating she had a retirement account at her company, Alliant F.S., -3- Inc., she did not provide its value. However, under her gross monthly deductions from income, it appears that she pays $96.58 monthly into the Plan. In her brief to this court, she merely states she has no pension benefits. On April 17, 1989, one month prior to their marriage, Edward and Amanda Miles bought a home on 5154 Arch Street in Maple Heights, Ohio. The purchase price of the home was $57,000. The title was solely in Edward Miles' name; however, Amanda Miles paid half the mortgage. Amanda Miles also covered the costs of all improvements made on the home and purchased the vacant lot next to their home. Amanda Miles' monetary contribution toward the home totals $8,500. (TR. 19.) The property is currently valued at $65,000. (TR. 33.) Edward Miles owns a 1993 Chevrolet S90 truck with a value of $7,000. (TR. 6.) Amanda Miles owns a 1993 Ford Taurus with a value of $6,500. (TR. 6.) Both vehicles have outstanding liens. Edward Miles' other assets include two savings accounts, a joint life insurance policy, and various personal properties. Amanda Miles' other assets include a savings account, a life insurance policy, a joint life insurance policy, a retirement account, and various personal properties. The court issued its Journal Entry on July 30, 1996. The court found that Amanda Miles established the cause of Incompat- ibility and granted the divorce. Amanda Miles was awarded, free and clear of any claim from Edward Miles, the 1993 Ford Taurus, the home at 5154 Arch Street, Maple Heights, Ohio, the adjacent vacant -4- lot, and the personal property. The court also ordered Amanda Miles to pay and hold Edward Miles harmless on certain marital debts totaling $60,500 and certain pre-marital debts totaling $5,400. Included in these debts is the house mortgage which has a remaining lien of $51,000. Edward Miles was awarded the 1993 Chevrolet truck and was ordered to pay the remaining marital debts totaling $14,700. On July 19, 1996, Edward Miles moved for leave to answer, which was denied as moot. In Edward Miles' first assigned error, he argues the trial court is not privileged to omit valuation altogether. Willis v. Willis (1984), 19 Ohio App.3d 45. However, in Willis, the court held the standard to be used is the totality of the circumstances. Id. at 48. Upon reviewing this record, we cannot say that the trial court assigned an unknown value or no value to Amanda Miles' Retirement or Pension Plan. We cannot determine if Amanda Miles has a Retirement Plan. However, we can review with reasonable certainty the property division in this case and conclude that it was equitable. Cherry v. Cherry (1981), 66 Ohio St.2d 348. This was an uncontested divorce of a seven year marriage. The identification of the property was not complicated or complex. The trial court awarded the house to Amanda Miles because she had made substantial contributions to it and was paying half the mortgage. The parties were both given their respective cars. Amanda Miles was ordered to pay and hold Edward Miles harmless on debts totaling $65,900 that included the $51,000 mortgage. Edward Miles was ordered to pay $14,700 of the marital debts. They were both given -5- their respective savings accounts, life insurance policies, and other personal properties. Under these circumstances, it appears to this court that the trial court achieved an equitable division of the marital property. Consequently, the lack of value on Amanda's Retirement Plan assuming she has one, did not prevent this court from reviewing the overall division of the property. Willis at 48. Consequently, the trial court did not act unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Edward Miles' first assigned error is not well taken. Edward Miles's second and third assignments of error are closely related. Both address the issue of classifying assets as either marital or separate. Therefore, they will be discussed together. Edward Miles first argues the trial court failed to delineate marital and separate property and failed to valuate said property in its Journal Entry. Additionally, he argues the trial court failed to award him his separate property. The trial court must classify assets as either marital or separate property, then award each spouse his or her own separate property. Landry v. Landry (1995), Ohio App.3d 289. Marital property is real and personal property owned or acquired by either or both spouses during the marriage. R.C. 3105.171(A)(3)(i). Separate property is real or personal property "found by the court to be *** acquired by one spouse prior to the date of the marriage." R.C. 3105.171(A)(6)(a)(ii). Commingling separate -6- property with other property does not destroy its identity unless its identity is not traceable. R.C. 3105.171(A)(6)(b). The trial court identified the marital and separate property at trial. The court questioned Amanda Miles and Edward Miles about their assets, debts, and property. Neither spouse disputed information provided to the court by the other. The Court determined the following: ASSETS: DEBTS: 1993 Taurus (W) Auto Lien (W) 1993 Chevy Truck (H) Auto Lien (H) Residence (H&W) American Express (H) Vacant Lot (H&W) Optima Card (H) VISA (H) Sears (H&W) Star Bank (H&W) The court also classified the properties in the Journal Entry. The Journal Entry explicitly states "the marital property acquired during the marriage *** shall be divided in accordance with this order." The court awarded Edward the truck and personal property. The court ordered Edward to pay the loan on the truck and the VISA card. Amanda was awarded the remaining assets and was ordered to pay the remaining debt "to prevent a skewed distribution of the marital assets, and as an offset for the defendant's equitable interest in the marital property." (Journal Entry p. 640) Edward Miles argues the house in Maple Heights was his separate property because the title was in his name. Commingled 1 Edward admitted to the court that the debt from the credit cards was debt he brought into the marriage except for the VISA card. (TR. 6.) The majority of the debt from the VISA card was created after the marriage. -7- property must be traceable to one of the spouses in order to be considered separate property. See Peck v. Peck (1994), 96 Ohio App.3d 731. Edward Miles did not dispute the fact that Amanda Miles paid the closing costs, half the monthly mortgage, and all improvements made on the house. Edward Miles presented no evidence tracing the property to him. Finally, Edward Miles argues in his fourth assigned error that the trial court abused its discretion when it denied his Motion for Leave to File an Answer Instanter. Edward claims that because he was without counsel at trial, the court should have allowed him to file an answer instanter so that he could be represented by counsel. A Motion for Leave to File an Answer Instanter, pursuant to Civil Rule 6(B)(2), permits an extension upon a showing of excusable neglect. State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470. The trial court has discretion, when granting or denying said motion. State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464. The determination of whether neglect is excusable or inexcusable must take into consideration all the surrounding facts and circumstances. Id. Our review of the record shows Edward Miles had notice of the divorce complaint against him. He was present at trial and was an active participant. The court repeatedly asked Edward Miles if he had any objections to statements made during trial. Most importantly, Edward did not give a reason as to why he neglected to file an answer. Considering these facts, the trial court was -8- correct in denying Edward's motion. His fourth assigned error is not well taken. Judgment affirmed. -9- It is ordered that Appellee recover of Appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Domestic Relations Division of Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ABOOD*, J., CONCURS, and KARPINSKI, J., CONCURS IN JUDGMENT ONLY PATRICIA ANN BLACKMON PRESIDING JUDGE (*CHARLES D. ABOOD, RETIRED JUDGE OF THE 6TH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .